Considered and decided by Klaphake, Presiding
Judge, Willis,
Judge, and Wright,
Judge.

U N
P U B L I S H E D O P I N I O N

KLAPHAKE, Judge

In
this certiorari appeal, relator John P. Breese challenges the restoration order
of the commissioner of the Department of Natural Resources requiring him to
remove riprap that he had installed in 1992 from his shoreline on Lake Sylvia. Because the commissioner’s order is arbitrary
and capricious and not supported by substantial evidence in the record, we
reverse.

D E C I S I O N

This
court may reverse or modify an agency decision if “the administrative finding,
inferences, conclusion, or decisions are . . . unsupported by substantial
evidence in view of the entire record as submitted; or . . . arbitrary or
capricious.” Minn. Stat. § 14.69 (2006). The party seeking review has the burden to
show that the agency decision violated these requirements. Markwardt
v. State, Water Res. Bd., 254 N.W.2d 371, 374 (Minn. 1977). This court largely defers to an agency’s
expertise in its field. Bloomquist v. Comm’r of Natural Res.,
704 N.W.2d 184, 187 (Minn.
App. 2005). If the issue is a question
of law, however, this court is not bound by the agency’s decision and need not
defer to the agency’s expertise. Dozier v. Comm’r of Human Servs., 547
N.W.2d 393, 395 (Minn.
App. 1996), review denied (Minn. July
10, 1996). The agency decision must be
supported by substantial evidence, defined as “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion or more than a
scintilla of evidence.” Brinks, Inc. v. Minn. Pub. Utils. Comm’n, 355 N.W.2d
446, 450 (Minn.
App. 1984) (quotation omitted).

An agency
ruling is arbitrary or capricious if the agency “(a) relied on factors not
intended by the legislature; (b) entirely failed to consider an important
aspect of the problem; (c) offered an explanation that runs counter to the
evidence; or (d) the decision is so implausible that it could not be explained
as a difference in view or the result of the agency’s expertise.” CARD v.
Kandiyohi County Bd. of Comm’rs, 713 N.W.2d 817, 832 (Minn. 2006).

According
to the record before us, relator installed riprap along the southern half of
his lakeshore in 1992. A hydrologist
from the Department of Natural Resources (the department) staked the ordinary
high water level (OHWL), which marks the boundary of the department’s
jurisdiction, and instructed relator that he could install riprap no further
than five feet lakeward from that line. In
1992, riprap could be installed without a permit, so long as it did not extend
more than five feet lakeward of the OHWL, had a minimum slope of 3:1, and
conformed to the natural shoreline. See Minn. R. 6115.0190, subp. 4.C. (1991). There is no evidence in the record that
relator failed to follow these instructions, and there is testimony from
relator’s neighbor stating that the boulders relator used as riprap were in
place when the neighbor purchased the adjoining land in 1996.

Although the
administrative law judge (ALJ) concluded that the 1992 riprap conformed to the
staking done by the department hydrologist, the commissioner deleted this
conclusion, commenting in his short memorandum that the riprap boulders did not
conform to the natural alignment of the shoreline and that they extended as far
as 8.5 feet lakeward from the OHWL, a violation of the 1992 rule. The commissioner based his conclusion on a
survey done by a department hydrologist, Patricia Fowler, which was submitted in
the record as Exhibit 42. Fowler
testified that she was unable to establish the natural alignment of the
shoreline; she therefore established two endpoints that were at the natural
OHWL elevation of 1050.1 feet and drew a straight line between them as the best
evidence of the OHWL and the natural shoreline.
The 1992 riprap extended as much as 8.5 feet lakeward from this straight
line.

In
his defense, relator submitted the testimony of a certified land surveyor,
Dennis Taylor, who presented evidence regarding the natural alignment of the
shoreline and the OHWL. According to
relator’s Exhibits 1, 31, and 31A, the 1992 riprap conformed to the natural alignment
of the shoreline and was within five feet of the OHWL. Because high water obscured the shoreline in
both 2002 and 2003, relator also submitted a survey prepared by Taylor in 1991,
which showed that Taylor’s 2004 survey was an accurate depiction of the
shoreline.

The
commissioner based his decision on Fowler’s testimony despite the fact that Fowler
was unable to establish the natural shoreline and the OHWL, and thus had to
create an arbitrary line. In doing so,
the commissioner ignored Taylor’s testimony that affirmatively established the
natural shoreline and OHWL. Our review
of the exhibits submitted by the parties confirms that the certified survey
establishes a natural shoreline, as opposed to the arbitrary straight line
offered by the department, and that the natural shoreline is consistent with
the 1991 survey done before installation of any riprap.

Although
we generally defer to agency fact finding, “[t]he court will intervene . . .
where there is a combination of danger signals which suggest the agency has not
taken a hard look at the salient problems and the decision lacks articulated standards
and reflective findings.” MCEA v. Comm’r of MPCA, 696 N.W.2d 95,
105 (Minn.
App. 2005) (quotation omitted). Here,
the commissioner offered no explanation as to why he rejected Taylor’s survey,
while accepting the less accurate and hypothetical survey prepared by Fowler.

When
determining whether an agency decision is based on substantial evidence, we
review the entire record as submitted. Pomrenke v. Comm’r of Commerce, 677
N.W.2d 85, 94 (Minn. App. 2004), review denied (Minn. May 26, 2004). We conclude the record here lacks substantial
evidence to demonstrate that the commissioner engaged in reasoned
decision-making; further, the commissioner’s ruling runs counter to the
evidence that was submitted, suggesting that the order is arbitrary and capricious.
We therefore reverse the restoration
order as it applies to the removal of the 1992 riprap.